As we have long suspected, the Administration is moving forward with a proposed regulation to dramatically change our immigration system and significantly harm immigrant families. The Department of Homeland Security posted a draft version of the rule about two weeks ago, and just this morning the rule was finally posted for inspection in the Federal Register before it is officially posted next week. Comments are expected to be due December 10, 2018.

I haven’t combed through all 434 pages yet, but the regulatory text appears unchanged from the earlier draft and would have the same damaging impact. If finalized, as I previously explained, the rule would make it far more difficult to immigrate to the United States or become a legal permanent resident by:

• Applying the public charge test more often,
• Lowering the threshold for public charge from primarily dependent on to likely to receive a public benefit,
• Expanding the list of public benefits considered to include benefits like Medicaid, and
• Imposing a specific income rule.

The proposed regulation continues to rely on a “totality of circumstances” test, with consideration of the five factors laid out in the Immigration and Nationality Act (INA): age; health; family status; assets, resources and financial status; and education and skills. The proposed regulation sets a “standard” for each and then outlines specific “evidence” to be used to assess whether the standard is satisfied, and though all of them merit scrutiny, I’d like to focus on the fourth factor – assets, resources, and financial status.

For this assets, resource and financial status factor, DHS sets a standard of: income of at least 125% of the federal poverty level ($25,975 for a family of three in 2018), sufficient household assets and resources to cover reasonably foreseeable medical costs, and whether any financial liabilities or past receipt of public benefits make the immigrant more or less likely to be a public charge. The proposed rule then lists nine pieces of evidence to consider in determining whether the immigrant meets this standard. This is significantly more than what is proposed to be used for any of the other factors. The first five pieces of evidence are various cash and non-cash assets and resources, including support from others outside the household and excluding support from public benefits.

But for this factor, DHS would also consider whether the immigrant has applied for or received any public benefit or been certified or approved to receive public benefits. This is a dramatic departure from current law. Today, immigrants may be considered a public charge if they are likely to be primarily dependent on government-funded cash assistance or long-term institutional care. Under this proposed rule, DHS will consider whether the immigrant has even applied for public benefits, including Medicaid, SNAP, Medicare Part D Low Income Subsidy (LIS), and Housing assistance.

DHS would also consider the immigrant’s credit history and credit score, along with whether the immigrant has applied for or received a fee waiver during the immigration process (there are various filing fees along the way, some costing a couple hundred dollars, some over $1000). Last but not least, DHS would consider whether the immigrant has private health insurance or the financial resources to pay for reasonably foreseeable medical costs.

Keeping in mind that satisfying this standard is only one part of the totality of circumstances public charge test – one factor of many – you can see just how hard it will be for families to present all the evidence required and meet each of the standards. To further complicate matters, the proposed regulation outlines various timelines and look-back periods for benefit use, with both dollar and durational thresholds, making it even harder to decipher whether or how use of public benefits before applying will impact the outcome.

Use of public benefits is further defined as a “heavily weighted negative factor” and the only “heavily weighted positive factor” is income above 250% FPL. So, for all practical purposes, low- and moderate-income families will find themselves in two groups – excluded based on income alone (under 125% FPL) and excluded based on income plus use of public benefits (125-250% FPL). Only families with income exceeding 250% FPL would thus be likely to gain admission or green cards.

This rule will make it harder for low- and moderate-income families to stay healthy, productive, and most importantly, together. As we saw over the summer in the public outcry following the Administration’s policy to separate children from the parents at the border, Americans believe families belong together and this proposed rule runs counter to those values. The consequences will be felt for generations to come.